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Permissible Assaults Cited in Graphic DetailDrugging Detainees Is Among Techniques

By Dan Eggen
Washington Post Staff Writer

06/04/08 "Washington
Post " -- - -- Thirty pages into a memorandum discussing
the legal boundaries of military interrogations in 2003, senior Justice
Department lawyer John C. Yoo tackled a question not often asked by
American policymakers: Could the president, if he desired, have a
prisoner's eyes poked out?

Or, for that matter, could he have "scalding water, corrosive acid or
caustic substance" thrown on a prisoner? How about slitting an ear, nose
or lip, or disabling a tongue or limb? What about biting?

These assaults are all mentioned in a U.S. law prohibiting maiming,
which Yoo parsed as he clarified the legal outer limits of what could be
done to terrorism suspects as detained by U.S. authorities. The specific
prohibitions, he said, depended on the circumstances or which "body part
the statute specifies."

But none of that matters in a time of war, Yoo also said, because
federal laws prohibiting assault, maiming and other crimes by military
interrogators are trumped by the president's ultimate authority as
commander in chief.

The dry discussion of U.S. maiming statutes is just one in a series of
graphic, extraordinary passages in Yoo's 81-page memo, which was
declassified this past week. No maiming is known to have occurred in
U.S. interrogations, and the Justice Department disavowed the document
without public notice nine months after it was written.

In the sober language of footnotes, case citations and judicial rulings,
the memo explores a wide range of unsavory topics, from the use of
mind-altering drugs on captives to the legality of forcing prisoners to
squat on their toes in a "frog crouch." It repeats an assertion in
another controversial Yoo memo that an interrogation tactic cannot be
considered torture unless it would result in "death, organ failure or
serious impairment of bodily functions."

Yoo, who is now a law professor at the University of California at
Berkeley, also uses footnotes to effectively dismiss the Fourth and
Fifth amendments to the Constitution, arguing that protections against
unreasonable search and seizure and guarantees of due process either do
not apply or are irrelevant in a time of war. He frequently cites his
previous legal opinions to bolster his case.

Written opinions by the Office of Legal Counsel have the force of law
within the government because its staff is assigned to interpret the
meaning of statutory or constitutional language. Yoo's 2003 memo has
evoked strong criticism from legal academics, human rights advocates and
military-law experts, who say that he was wrong on basic matters of
constitutional law and went too far in authorizing harsh and coercive
interrogation tactics by the Defense Department.

"Having 81 pages of legal analysis with its footnotes and
respectable-sounding language makes the reader lose sight of what this
is all about," said Dawn Johnsen, an OLC chief during the Clinton
administration who is now a law professor at Indiana University. "He is
saying that poking people's eyes out and pouring acid on them is beyond
Congress's ability to limit a president. It is an unconscionable
document."

Yoo defends the memo as a "near boilerplate" argument in favor of
presidential prerogatives, and says its fundamental assertions differ
little from those made by previous presidents of both parties. In
comments to The Washington Post and other news organizations, Yoo has
also criticized the Justice Department for issuing new legal opinions
that do not include detailed discussions of specific interrogation
tactics, which he views as crucial to defining the boundaries of what is
lawful.

"You have to draw the line," Yoo said in an Esquire magazine interview
posted online this past week. "What the government is doing is
unpleasant. It's the use of violence. I don't disagree with that. But I
also think part of the job unfortunately of being a lawyer sometimes is
you have to draw those lines. I think I could have written it in a much
more -- we could have written it in a much more palatable way, but it
would have been vague."

The 2003 memo includes long discussions of the relative illegality of a
wide variety of coercive interrogation tactics, including a British
technique in which prisoners are forced to stand in a spread-eagle
position against a wall and an Israeli technique, called the Shabach, in
which a suspect is hooded, strapped to a chair and subjected to
powerfully loud music.

Various courts had declared both tactics to be inhumane, but not
torture, Yoo noted. This meant that they were illegal under a provision
of the Geneva Conventions that the administration said had no relevance
to unlawful combatants in its custody.

In another passage, discussing the bounds of Eighth Amendment
protections involving confinement conditions, Yoo concluded that "the
clothing of a detainee could also be taken away for a period of time
without necessarily depriving him of a basic human need." Yoo cited the
need to prove "malice or sadism" on the part of an interrogator before
he or she could be prosecuted.

The interrogation memo was considered a binding opinion for nine months
until December 2003, when OLC chief Jack Goldsmith told the Defense
Department to ignore the document's analysis.

In his 2007 book "The Terror Presidency," Goldsmith, who now teaches law
at Harvard University, said that some of the memos written by Yoo and
his colleagues from 2001 to 2003 were "deeply flawed: sloppily reasoned,
overbroad, and incautious in asserting extraordinary constitutional
authorities on behalf of the President."

Douglas W. Kmiec, a Pepperdine University law professor who served as
constitutional legal counsel for Presidents Ronald Reagan and George H.W.
Bush, said Yoo can be faulted "for not writing more narrowly." It is
often better to "brush in hazy gray" rather than "spray paint in black
and white," Kmiec said.

"It is
a dark and dreadful thing, given that 9/11 was done by the intelligence
services of certain governments that elements of those same governments
can imprison and torture men for information they could not possibly
have since the events they are being questioned about are being carried
out by the forces that are torturing them. This is beyond Kafka folks
and it is happening in real life."